Brett Kavanaugh on the Supreme Court Could Be Trouble for Tech

President Donald Trump has chosen Washington DC Circuit Court Judge Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the Supreme Court. The decision, which Trump announced Monday night, is likely to face opposition not only from Democrats in Congress but also from leaders within the tech industry who oppose Kavanaugh’s perspective on issues related to privacy and net neutrality.

A former clerk for Justice Kennedy, the 53-year-old judge also once worked under independent counsel Kenneth Starr, whose investigation led to the impeachment of President Bill Clinton. Later, Kavanaugh served as White House staff secretary under President George W. Bush. As predicted, he is a solidly conservative pick, whose nomination to the DC Circuit Appeals Court was put on hold for three years over concerns he was too partisan. But President Trump denied the inherently political nature of his pick. “What matters is not a judge’s political views,” he said, “but whether they can set aside those views to do what the law and the constitution require.”

Left-leaning groups including Planned Parenthood and the Democratic National Committee rushed to scrutinize Kavanaugh’s record of opposition to the Affordable Care Act and abortion rights, including a recent case in which Kavanaugh opposed an undocumented teenager’s request for an abortion while she was in detention. But it’s Judge Kavanaugh’s less discussed decisions that will likely rankle the tech industry.

In May of 2017, Kavanaugh argued that net neutrality violates internet service providers’ First Amendment rights in a dissent to a DC Circuit Court decision regarding the Federal Communication Commission’s 2015 order upholding net neutrality. The dissent hinges on a case from the 1990s called Turner Broadcasting v. FCC, which established that cable companies were protected by the First Amendment, just as newspaper publishers and pamphleteers were. “Just like cable operators, Internet service providers deliver content to consumers. Internet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just as cable operators decide what content they will transmit,” Kavanaugh wrote. “Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes.”

‘Kavanaugh’s opposition to regulating internet service providers could close the book on net neutrality protections for a generation.’

Kavanaugh argued that just because internet service providers don’t currently make editorial decisions about what does and doesn’t flow over their pipes doesn’t mean they don’t have the right to. “That would be akin to arguing that people lose the right to vote if they sit out a few elections,” he wrote. “Or citizens lose the right to protest if they have not protested before.”

According to Gigi Sohn, who served as counselor to former FCC chairman Tom Wheeler and is now a distinguished fellow at Georgetown Law Institute for Technology Law & Policy, this perspective represents the “fringe of First Amendment jurisprudence.”

“For 85 years, the First Amendment rights of network operators like ISPs, broadcasters, and cable operators have always been balanced with the rights of the public,” Sohn says. “Kavanaugh’s ascension to the bench could start the mainstreaming of a legal theory that would all but eviscerate the public’s rights with regard to networks that use public rights of way, and by law are required to serve the public.”

The FCC has already killed net neutrality for the time being, reversing Obama-era rules that would have prevented internet service providers from speeding up or slowing down service however they chose. But lawsuits both in support of net neutrality and in opposition to it are already making their way through the courts. If the Supreme Court took them up, Kavanaugh’s opposition to regulating internet service providers could close the book on net neutrality protections for a generation.

Despite his consistently conservative pedigree, Kavanaugh’s nomination could also run afoul of the libertarian wing of the Republican Party, which has opposed government surveillance programs. In September of 2010, he dissented from the DC court’s decision not to revisit a ruling that found that police violated a suspect’s Fourth Amendment rights by using a GPS device to track his car without a warrant. Kavanaugh argued that the decision ignored precedent laid out in a 1983 case called United States v. Knotts. That case found that the government did violate a man’s Fourth Amendment rights by using a radio transmitter to track his movements because “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”

Kavanaugh argued that the same should go for GPS trackers. “The reasonable expectation of privacy as to a person’s movements on the highway is, as concluded in Knotts, zero,” Kavanaugh wrote. The Supreme Court later upheld the DC circuit’s ruling. In his opinion, Judge Antonin Scalia wrote that the government had violated the suspect’s Fourth Amendment rights because the police “physically occupied private property for the purpose of obtaining information.”

Kavanaugh also later defended the National Security Agency’s bulk collection of phone records in a concurring opinion in November of 2015, writing that “the Government’s metadata collection program is entirely consistent with the Fourth Amendment.” The opinion offered a broad interpretation of the state’s right to search and seizure. “The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient ‘special need’ – that is, a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty,” Kavanaugh wrote. “Examples include drug testing of students, roadblocks to detect drunk drivers, border checkpoints, and security screening at airports.”

Recently, the Supreme Court has appeared more eager to protect Americans’ digital property from unreasonable search, not just their physical property. In a 5-4 decision in Carpenter v. The United States last month, the court ruled that warrantless search and seizure of cell-site records does violate the Fourth Amendment. And yet, Chief Justice John Roberts was careful to point out that the court’s opinion “does not consider other collection techniques involving foreign affairs or national security.”

At a time when the Trump administration has taken extreme measures to crack down on both illegal and legal immigration in the name of national security, the question of where Kavanaugh would draw the line on government surveillance warrants closer inspection during what is sure to be a knockdown, drag-out fight over his confirmation this fall.